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Inferences, Intent, and the Necessity to Redefine Genocide

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Inferences, Intent, and the Necessity to Redefine Genocide Emory International Law Review Volume 31 Issue 2 2017 The Karadžić Genocide Conviction: Inferences, Intent, and the Necessity to Redefine Genocide Milena Sterio Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Recommended Citation Milena Sterio, The Karadžić Genocide Conviction: Inferences, Intent, and the Necessity to Redefine Genocide, 31 Emory Int'l L. Rev. 271 (2017). Available at: https://scholarlycommons.law.emory.edu/eilr/vol31/iss2/2 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. STERIO GALLEYSPROOFS2 2/20/2017 2:13 PM THE KARADŽIĆ GENOCIDE CONVICTION: INFERENCES, INTENT, AND THE NECESSITY TO REDEFINE GENOCIDE Milena Sterio* INTRODUCTION In March 2016, the International Criminal Tribunal for the Former Yugoslavia (ICTY) convicted former Bosnian Serb leader, Radovan Karadžić, of genocide and crimes against humanity and sentenced him to forty years imprisonment.1 In particular, Karadžić was found guilty of genocide in Srebrenica, the persecution of Bosnians and Croats throughout Bosnia and Herzegovina, terrorizing the population of Sarajevo, and taking United Nations (U.N.) peacekeepers hostage.2 According to the ICTY Trial Chamber verdict, the crimes were committed as part of four joint criminal enterprises (JCE) in which Karadžić was a protagonist.3 In July 2016, Karadžić announced, through his defense counsel, that he would appeal the verdict on the ground that he did not get a fair trial—according to Karadžić’s attorney, Peter Robinson, “[t]he trial chamber considered him guilty in advance and then constructed the verdict to justify its presumption.”4 Robinson also stated that “[t]he chamber concluded [Karadžić] had an intention to kill the captives from Srebrenica on the basis of its interpretation of a coded telephone conversation. Such a way of drawing conclusions is unfounded and incorrect, so the verdict is unfair.”5 The ICTY prosecutors announced, on their end, that they also would appeal the verdict in order to ask “for Karadzic [sic] to be found guilty of the genocide in seven other Bosnian municipalities in 1992, and for his sentence to be raised to life imprisonment.”6 The appeals chamber of the Mechanism for International Tribunals, which is taking over the remaining work of the ICTY as it shuts down, * Professor of Law and Associate Dean for Academic Enrichment, Cleveland-Marshall College of Law. 1 Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Judgement, ¶ 6070–72 (Int’l Crim. Trib. for the Former Yugoslavia Mar. 24, 2016), http://www.icty.org/x/cases/Karadžić/tjug/en/160324_judgement.pdf. 2 Id. ¶¶ 5824, 5849–50, 5950–51, 6002, 6047. 3 Id. ¶ 6046. 4 Radosa Milutinovic, Radovan Karadzic Appeals Against Genocide Conviction, BALKAN TRANSITIONAL JUST. (July 22, 2016), http://www.balkaninsight.com/en/article/Karadžić-files-appeal-notice-07-22-2016. 5 Id. 6 Id. STERIO GALLEYSPROOFS2 2/20/2017 2:13 PM 272 EMORY INTERNATIONAL LAW REVIEW [Vol. 31 will rule on the appeals, but as of now there is no clear deadline for delivering the ruling.7 In anticipation of the appeals chamber’s definitive ruling on the Karadžić verdict, this Article will address and analyze Karadžić’s genocide conviction. The Article will specifically focus on the interpretation of genocide espoused by the ICTY judges in this recent decision. As other commentators have already noted, the most striking finding of the ICTY Trial Chamber was that Karadžić had specific genocidal intent regarding the Srebrenica killings.8 During the Karadžić trial, the Prosecution had not been able to provide “smoking gun” evidence that Karadžić knew about the killings in Srebrenica as they were taking place; instead, the Prosecution’s case was essentially circumstantial.9 The Trial Chamber accepted the Prosecution’s reasoning and drew inferences from indirect evidence.10 It found that Karadžić was a participant in a JCE, sharing its common purpose: to eliminate Bosnian Muslims from Srebrenica. This common purpose eventually evolved to encompass the agreement to kill all Bosnian adult males and to forcibly transfer women and children.11 The most important item of evidence that the Trial Chamber took into account was a conversation that Karadžić had with another official, Miroslav Deronjić.12 From this conversation, the Trial Chamber inferred first that Karadžić knew about the killings at Srebrenica as they were taking place and second that Karadžić, because he did not do anything after this conversation, must have shared Deronjić’s (and others’) intent to kill Bosnian Muslims at Srebrenica.13 This interpretation of the intent requirement under the Genocide Convention and the customary law definition of genocide is novel and had not been espoused by other tribunals in the past. This Article will first discuss and analyze the Genocide Convention and its strict definition of genocide and the “intent” requirement. It will then focus on the evolution of this definition, in light of the recent Karadžić case. This Article will demonstrate that in modern-day conflicts, the finding of genocidal intent 7 Id. 8 See infra Part III. 9 See Marko Milanovic, ICTY Convicts Radovan Karadzic, EJIL: TALK! (Mar. 25, 2016), http://www. ejiltalk.org/icty-convicts-radovan-Karadzic/. 10 See id. 11 See Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Judgement, ¶¶ 5798, 5810–11, 5814 (Int’l Crim. Trib. for the Former Yugoslavia Mar. 24, 2016), http://www.icty.org/x/cases/Karadžić/tjug/en/160324_ judgement.pdf., 12 Milanovic, supra note 9. 13 Id. STERIO GALLEYSPROOFS2 2/20/2017 2:13 PM 2017] THE KARADŽIĆ GENOCIDE CONVICTION 273 may be an impossible task for the prosecution and that the ICTY Trial Chamber’s method of inferring intent based on knowledge and other indirect factors may be the only way that prosecutors will be able to obtain future genocide convictions. This Article will then discuss a possible re-drafting and re-conceptualizing of the genocide definition, in light of modern-day conflicts and warfare. I. GENOCIDE CONVENTION: A STRICT DEFINITION OF GENOCIDE The term “genocide” was coined by Polish jurist, Raphaël Lemkin, to describe the Nazis’ actions during World War II against the Jews.14 According to Lemkin, “[g]enocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.”15 Lemkin coined the term “genocide” by combining the Greek word genos (race, tribe) and the Latin word caedere (to kill).16 According to Lemkin’s view of the crime of genocide, “the critical elements of genocide were not the individual acts, though they may be crimes in themselves, but the broader aim to destroy entire human collectivities.”17 The Holocaust, as well as the trial of the Nazi defendants at Nuremberg, spurred states to negotiate a treaty on genocide to criminalize these atrocities.18 In December 1948, most U.N. member states agreed upon the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).19 Article II of the Genocide Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) 14 What is Genocide?, U.S. HOLOCAUST MEMORIAL MUSEUM, https://www.ushmm.org/wlc/ en/article.php?ModuleId=10007043 (last updated July 2, 2016). 15 RAPHAËL LEMKIN, AXIS RULE IN OCCUPIED EUROPE 79 (1944). 16 Beth Van Schaack, Engendering Genocide: The Akayesu Case Before the International Criminal Tribunal for Rwanda, SANTA CLARA L. DIGITAL COMMONS, July 2008, at 1, 15. 17 Id. 18 See David L. Nersessian, The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals, 37 TEX. INT’L L.J. 231, 249 (2002). Although the crime of genocide was not included in the Charter of the International Military Tribunal established to prosecute Nazi war criminals at Nuremberg, the indictment at Nuremberg charged the defendants with “deliberate and systematic genocide” and allegations of genocide appeared in the prosecutors’ closing statements. Id. 19 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention]. STERIO GALLEYSPROOFS2 2/20/2017 2:13 PM 274 EMORY INTERNATIONAL LAW REVIEW [Vol. 31 Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.20 The definition of genocide, as iterated in the Genocide Convention, has become customary international law as well as a jus cogens norm of international law.21 As such, this definition is binding on all states.22 The definition of genocide is narrow, as it requires proof that one of the enumerated groups (national, ethnical, racial, or religious) was targeted “as such.” Scholars have noted that the definition of genocide under the Genocide Convention is historically attributable to the role of the Soviet Union in this treaty’s negotiation—in the late 1940s, Soviet leader Joseph Stalin was committing massive purges of political
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